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Friday, 12 June 1970


Mr HUGHES (Berowra) (AttorneyGeneral) - Mr Speaker, you and other honourable members may think that this debate has taken a somewhat unusual course. The speech made by the honourable member for Hindmarsh (Mr Clyde Cameron) was notable for its lack of any substantial reference to the fundamental provisions of this Bill which, of course, arc those which substitute new sanction provisions of a more moderate character for what were thought to be, and with justification in the light of evidence, the rather draconian sanction provisions that are enshrined in sections 109 and the following two or three sections of the Act. I was most interested in the course followed by the honourable member for Hindmarsh in the debate this afternoon. He made scant reference to the undoubted fact that the Bill proposes an amendment of an enlightened character to the sanctions provisions of the Act. Instead of dwelling upon this fact, which from the viewpoint of his Party is of course an inconvenient one, he treated us to a long disquisition upon the alleged iniquities of section 5 of the principal Act.

I do not stand here this afternoon as an apologist for section 5 in its present form. It would be idle to deny that section 5 could be improved. But that is not the subject we are here to debate this afternoon. We are here to debate the amendments that the Bill will make to the sanctions provisions of the Act, these provisions which have been the subject of so much controversy in the world of industry and in the trade union movement.


Mr Clyde Cameron (HINDMARSH, SOUTH AUSTRALIA) - The Government could have amended that section while it was introducing these other amendments.


Mr HUGHES - The honourable member suggests by interjection that section 5 could have been amended on the run, on the wing as it were. 1 am not the Minister responsible for the administration of the Conciliation and Arbitration Act, but I think it is fairly clear from the documents which the honourable member for Hindmarsh read out this afternoon that amendments to section 5 of the Act appear to be under the close scrutiny of my colleague the Minister for Labour and National Service (Mr Snedden). I know it is easy always to complain that it takes time - and too much time - to get what are thought to be anomalies in statutes remedied or amended. One is used to hearing that complaint. The honourable member for Hindmarsh would be one of the first to recognise that the difficulties in relation to amendments of statutes are caused by a shortage of draftsmen. As he knows, the Government has taken steps in statutory form to remedy that shortage by having passed in this session the Parliamentary Counsel Bill, which comes into force today.

What surprised me about the attitude adopted by the honourable member for Hindmarsh was that while he railed against section 5 and drew attention to what he claimed to be manifest defects in il we have the extraordinary fact - extraordinary in the light of his complaints - that although the Opposition has proposed a number of amendments to the Bill it has not proposed a single amendment to section 5 of the principal Act There is nothing in either the short title or the long title of the Conciliation and Arbitration Bill 1970 which would preclude the honourable member for Hindmarsh from proposing an amendment to section 5. I take it that the honourable member would consider it no discourtesy to him if I drew attention to what is probably very obvious; namely, in formulating the amendments which are proposed to be moved in Committee this afternoon, the honourable gentleman had resort, and properly so, to the services of one of the parliamentary draftsmen. I do nol want to know what went on between the parliamentary draftsman and the honourable member for Hindmarsh, but I would have thought that if the complaints that have been voiced today are as deeply felt as the honourable member wanted to persuade us they are he might have invoked a little further the services of the draftsman to draw some amendments to that section. But not so. No amendment to section 5 is proposed.

What is the lesson to be drawn from this? I do not want to be hard on the honourable member for Hindmarsh at this hour after long days of sittings. Tiredness perhaps produces charity.


Mr Clyde Cameron (HINDMARSH, SOUTH AUSTRALIA) - You could have fooled me.


Mr HUGHES - The honourable member is very difficult to fool. I think the lesson to be drawn from the approach adopted by the honourable member for Hindmarsh is simply this: In order to avoid a discussion upon what is a very enlightened measure, namely, a modification of the sanctions provisions, he tried to lead the House down a rather sterile sidetrack. It would have been much more interesting, I suggest, for the House, for industry and for the trade union movement if we heard a little more from the honourable member as to his Party's attitude towards the newly proposed sanctions provisions which are substituted for the old contempt provisions which are set out in section 18.

The honourable member for Stirling (Mr Webb) in his contribution to the debate did not really grasp the principal question raised by this Bill, that is, the appropriateness and the suitability of the new sanctions provisions. He made a few passing references to the question. I thought he was rather guarded and his speech demonstrates the difficulty that the Opposition has in doing anything but refraining from criticism of the newly proposed sanctions provisions. I doubt whether the President of the Australian Council of Trade Unions will be deliriously delighted when he reads of the contributions to the debate made by the honourable member for Hindmarsh and the honourable member for Stirling because we did not hear either of those honourable members come out and make an outright denunciation of the sanctions provisions in any form. Of course, that has been the refrain persistently indulged in by certain prominent people in the trade union movement, including the President of the ACTU. I do not criticise him for putting his view. He is fully entitled to do that. But. of course, the Government and the Parliament are entitled to judge as to the correctness of such a view and to my mind there is no doubt whatsoever as to what the judgment must be.

No system of conciliation and arbitration in relation to industrial disputes can work unless at the ultimate stage there is some sort of sanction against disobedience of awards. A law which becomes unenforceable becomes meaningless and in truth no law at all. Therefore, 1 think this is recognised sub silentio by the Opposition this afternoon; this is implicit in the attitude that its leading speakers have taken in this debate. In their hearts they know that no system of industrial arbitration will ever be workable unless sanctions are available as a matter of last resort. I refer here not only to sanctions against employees or employees organisations but equally importantly to sanctions against employers and employers' organisations. I can never understand the attitude - I think that most people who would like to be considered as having commonsense can never understand the a Kit tide - which is taken up by prominent people in the trade union movement. Again, they are entitled to take up the attitude just as I am entitled to criticise it. The attitude that there must be no sanctions or penal provisions applicable to employees but that sanctions or penal provisions should nevertheless remain and apply against employers seems to overlook the well known principle that sauce for the goose is sauce for the gander. But I believe that at bottom we can say that it has been revealed in this debate this afternoon that the Opposition, in the person of its 2 leading speakers - led, of course, by the shadow Minister for Labour and National Service - recognises that so far as the sanctions provisions are concerned the game is up.

It is recognised implicitly that the old sanctions provisions - depending upon bans clause, injunction and then contempt procedure - have been replaced well and in an enlightened way by carefully thought out new sanctions provisions which will elevate the processes of conciliation at a final stage before enforcement action is allowed to be taken. The critical feature of this Bill is that it elevates in importance the process of conciliation in the attempt to settle what might be described as the ultimate or critical stages of an industrial dispute. This is done by the interposition, as required by the Bill, of a presidential member of the Conciliation and Arbitration Commission before enforcement action, by way of a prosecution for breach of a compliance provision in an award, can be taken.

That is not the only enlightened feature of this Bill. It is also important, I believe, that the House should observe that the penalty for daily disobedience or infringement of an industrial award is reduced by half - from a daily maximum of $1,000 to a daily maximum of $500. The honourable member for Hindmarsh, when he was dealing with this question of the amount of penalties, overlooked the very important feature that the amounts expressed in the Bill are, just as were the amounts expressed in the Act, maximums and not the only amounts that can be levied by way of penalty.


Mr Clyde Cameron (HINDMARSH, SOUTH AUSTRALIA) - But the maximum became the minimum under the old provisions.


Mr HUGHES - The honourable member says so. All I say in reply is that, whilst 1 have not the statistics in front of me. my recollection would not accord with the honourable member's statement made to me across the table. I believe that it will be found that in dealing with contempt applications under the old provisions - the provisions that are proposed to be replaced by the new provisions - the Commonwealth Industrial Court did exercise a good measure of discretion as to the amount of the fine.

Of course, in the light of recent history it was not a sufficient discretion because to exercise a discretion as to the amount of the fine does not achieve the objective that the Government sees as an objective necessary to be achieved, namely, that before enforcement procedures are taken at all there should be some procedure by which the merits of a dispute can be looked into and fully examined by a presidential member of the Commission so that - one can well imagine this happening - in a case in which there has been a stoppage of work in disobedience of a bans clause or a compliance clause in the relevant award, a presidential member of the Commission, perhaps, can mould his approach to the case so as to render it impracticable or impossible for an employer, whose conduct in relation to the events giving rise to the stoppage has not been altogether meritorious, to have resort to the sanctions provisions. That is the sort of objective - a very important objective it is - that the new sanction provisions are designed to obtain.

Let us be clear: Most people of responsibility - it would be unfair to use the absolute term 'all' and to say 'all people of responsibility'- on both sides of politics and on both sides of what we still regard as the industrial fence - labour and employers - recognise in their heart of hearts that an effective system of industrial operation cannot be attained without some form of sanctions.


Mr Clyde Cameron (HINDMARSH, SOUTH AUSTRALIA) - I do not accept that.


Mr HUGHES - If the honourable member for Hindmarsh says that he does not agree with that, it is rather strange that he did not say so a little more explicitly in his speech.


Mr Clyde Cameron (HINDMARSH, SOUTH AUSTRALIA) - I did noi have time.


Mr HUGHES - The honourable member says that he did not have time. He had a lot of time. In fact, I think he took 30 minutes of his allotted 45 minutes in dealing with section 5 of the Act which he has not even troubled to deal with by way of amendment. If that is not, if I may use a polite term, a little smokescreen, I do not know what is. I was going to say, before my honourable friend's friendly interruption, that most people with a responsible attitude - I am not suggesting that the honourable member for Hindmarsh has not a responsible attitude; he is fully entitled to his view - on either side of the industrial and political fences know and recognise in their heart of hearts that sanctions must be available if an effective system of conciliation and arbitration is to operate. I refer to sanctions at the end of the road - the end of the road that nobody wants to reach or should want to reach, but nevertheless the end of the road which is reached in the cut and thrust, as it sometimes is, of industrial life.

The need for sanctions was recognised expressly by a great figure in the industrial world, Mr Albert Monk, in 1963. Mr Monk is a man whose views are entitled to the utmost respect. Because of his conduct and performance as President of the Austraiian Council of Trade Unions for so many years, he is entitled to our warmest and deepest respect. I remind the House that, as reported in the Melbourne 'Age' of 18th September 1963, Mr Monk said:

You cannot - and I have seen it tried in various parts of the world - try to bring about complete repeal of legislation by strike action.

Mr Monkwas talking about the repeal of the sanctions provisions. He went on to say, apparently at the same time because it is reported in the same newspaper article:

Try to bring about a complete revocation and you run into trouble.

The revocation about which Mr Monk was speaking was the revocation of the sanction provisions, or the penal clauses as they have sometimes been called, in the Conciliation and Arbitration Act. They are the views of a man who is entitled to the utmost respect having regard to his service to the trade union movement and to his vast experience.

He is not the only person on the Labor side of politics or on the employees' side of industry who has similar views. Let us not forget that the contempt procedure for enforcing an award is to be found, I think, in its original form in the Conciliation and Arbitration Act of 1947, which was introduced by the Chifley Government. Under the 1947 Act, the penalty for contempt of court constituted by breach of injunction enjoining disobedience to an award was unlimited. The hour is late. We all want to go home. I think that I have spoken long enough - or probably too long. 1 therefore conclude by expressing my support for the Bill. I simply say this: lt is not of itself the millenium. It will be a most valuable measure if both sides - that is, employers and labour - recognise the worth of its provisions and try in a spirit of mutual cooperation, forebearance and tolerance to make it work.

Question put:

That the Bill be now read a second time.







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